General Counsel, P.C. attorneys have experience prosecuting and defending clients in defamation matters.
Defamation is the publication of any false statement of fact with the knowledge that it is untrue and the intent to harm another person’s reputation. A great overview of defamation law was provided by Andy Baxter in this Video. For a statement to be “actionable” to support a claim of defamation, the statement must harm the person’s reputation in the community or deter others from associating with the person. Some statements are so egregious that the law will assume they were made to harm the other person; these types of statements are “defamation per se.” Statements amounting to defamation per se are those statements that (1) impute the commission of a criminal offense involving moral turpitude; (2) indicate a person is infected with a contagious disease; (3) impute unfitness to perform the duties of an office or employment; or (4) hurts the person in his trade or profession. A case brought by Johnny Depp provides great guidance on what defamatory statements are “actionable” in Viginia.
Defamation can be verbal (slander) or written (libel). The “publication” requirement means that the statement must be made to a third person who actually understands that the statement was about the person allegedly defamed. Since truth is an absolute defense, a statement can only be defamatory if it is false. Typically, if a person reasonably believed a statement to be true, that is also a defense to defamation. Opinions are also protected statements that cannot be the basis of a defamation claim. Maryland, Virginia, and D.C. all have a one-year statute of limitations on defamation claims. This means that generally, a person has one year after the defamatory statement is published to bring a claim.
Any information communicated about another person’s fitness to perform in their job, trade, or profession falls under defamation per se, and is automatically considered harmful, and thus, can be the basis of a claim of defamation. Such statement may be made in email conversations between employees, performance evaluations conducted by a supervisor, communications between officers, managers, and directors of a company about personnel decisions, and job references provided about former employees.
Regarding communications between employees, it’s important for business owners to foster environments where employees are not encouraged or condoned to attack each other’s fitness to perform their job duties. Such an environment can create the circumstances where defamation lawsuits can occur.
Regarding supervisors conducting performance evaluations, it’s important that supervisors base evaluations on objective data and standard benchmarks, when possible. When managers, officers, and directors of a corporation discuss personnel decisions, discussions should be based on the performance evaluations provided by supervisors and the objective business needs of the company. When providing employment information to potential future employers regarding former employees, business owners should keep the information provided as minimal as possible. Typically, dates of employment, last position held, and last salary earned are the pieces of information you should provide to a potential employer, and additional information should not be shared, as a matter of policy.
Defamation on the Internet
In this new age of social media, there are increasingly more questions about whether statements made on platforms such as Facebook, Twitter, or Instagram can be the basis of a claim of defamation. In short, yes, if the required criteria are met. Since social media platforms provide opportunities for individuals to make statements to a large group of people, the “publication” requirement may be more easily established with statements made on social media. However, it’s important to remember than opinions are privileged statements and cannot form the basis of a defamation claim. Using the internet as a forum for defamatory statements can also affect the timing of when a claim may be brought. While typically, a defamation claim must be brought within one year of when the cause of action arises, if the statement was originally made anonymously or under a false identity on the internet, the start of the one-year deadline may be “tolled” or extended until the identity of the publisher is discovered.
If you have questions about defamation, specifically defamation in a business context, attorneys at General Counsel P.C. can help.